TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 331

14

Those difficulties have largely been eliminated, so one gathers, in

Australia, New Zealand etc. by parliamentary legislation, and in the

U.K. by Order in Council of legislative force, empowering regulations which have the force of subordinate legislation. Choi Sum and others v. A.G. (supra) clearly shows the dangers. The scope of the Royal prerogative is a legal precinct of considerable obscurity. Clause 9 of a recent

Memorandum of Conditions of Service provides :-

"for purposes of discipline, an officer is subject to Colonial Regulations, Civil Service (Disciplinary) Regulations, Civil Service Regulations, Government circulars and to any other Ordinances or Regulations

which apply to the department or office to which he is appointed. Although particular attention is drawn

to the succeeding sub-paragraphs, regulations on discipline cover a wider field and it is the

responsibility of each officer to acquaint himself with these regulations."

In my submission that is a very tall order indeed. It is, I suggest, far from easy for the professional lawyer to determine exactly how the various regulations inter-mesh. Even for all this abundance of caution we may still have a Choi Sum situation, where a judge of the High Court in all good faith renders an important Civil Service Regulation completely inoperable. In a time of increasing insistance of Government servants on the strict measure of their legal rights it is no good being able to justify the present system by laborious and intricate legal argument in the highest Appeal Courts. At various points the arguments I have propounded are vulnerable. The Governor's right to delegate his powers of discipline, for example is at best obscure. CSR 2 providing "They The Government Regulations have no force in law", (which I have thus far been pleased to ignore) must still be regarded as a trip-wire. If the regulations are, as I have said, an expression of prerogative authority, then in a decided way they must have some sort of legal force.

Recommendations

For the efficiency of the Government service, as well as the requirements of ordinary fairness to Government servants; regulations,